Living: the ultimate team sport

Long-term care residents’ rights: Part 2

Posted on November 12, 2014 Updated on November 12, 2014

I hope you have already had a chance to look at Part 1 of this series on LTC residents’ rights.  Today’s topic focuses on one aspect of the admission process that oftentimes slips through the cracks unnoticed.

The case of the missing Kindle Fire

“Housekeeping!”

That’s my cue to vacate the apartment and let a staff member clean my place. I turned off my Kindle Fire, placed it next to my reading chair, and opened the door. “I’m so glad you’re here. I love having a clean apartment and always look forward to my weekly cleaning.”

“You are Mrs. Ruth Milliken?”

“Yes, that’s me. Are you new on staff at Fairview Manor?”

“Yes, I am Carolina, I start this week. May I come in and clean?”

“Certainly, I’m heading to lunch so take your time.”

********

It was so nice being able to take advantage of the good weather by having lunch on the patio for a change. I’m going to read a bit and then maybe take a nap; all that sunshine made me a bit sleepy. I unlocked my apartment door, made myself a cup of tea, and returned to my reading chair.

“Oops! I’d swear I left my Kindle right here on the table next to my chair.” I stood up and lifted the seat cushion, thinking perhaps that it slipped between the cushion and chair frame without my knowing it.

“Now this is silly, I know I placed it on the side table.” Just the same, I looked throughout my apartment to make sure I wasn’t mistaken. A sudden realization hit me, “That new housekeeper, she must have stolen it.”

I made my way to the Administrator’s office to report the mishap. “Jason, may I come in?”

“Certainly Mrs. Milliken, have a seat, how can I help you?”

I sat on the edge of one of the visitor chairs and relayed my suspicions about my missing Kindle. “So you see, I’m certain it must have been your new housekeeper, Carolina. She was the only one who had access to my apartment while I was at lunch.”

“Are you sure you’re not mistaken? Was your door locked when you returned from lunch?”

“Yes, it was; at least the housekeeper locked up after herself.”

Jason got up from his desk, retrieved a folder from the large file cabinet behind him, and returned to his desk. “I’m truly sorry you’ve misplaced your IPad.”

“It was a Kindle – the latest Kindle Fire and it was a gift from my daughter-in-law.”

“Okay – Kindle.” He opened the folder and thumbed through a few pages and folded back one of them. “If you’ll look right here, you’ll see that you signed a Waiver of Liability when you moved into Fairview Manor.” He turned the folder towards me so I could read it. “This is your signature, isn’t it?”

“Well, yes, that’s my signature, but you can’t be saying that you’re penalizing me for signing that document. I signed lots of documents that day, fully trusting that everything you placed before me was on the up and up. Let me read that thing.” I glanced through the wording and couldn’t believe what I was reading: Fairview Manor and its parent company, Senior Housing Corporation, accepts no liability for items lost, stolen, or otherwise misplaced.

I looked up at Jason who was comfortably reclining in his executive desk chair. “This is utterly ridiculous; if I had understood what you were asking me to sign, I would have never signed this piece of paper.”

“If you hadn’t, we would have had no recourse but to refuse your admission into our community.”

“But that housekeeper stole my property. You have a thief on staff here.”

“I assure you, every employee hired at Fairview Manor goes through a criminal background check – otherwise they can’t work here.”

“Did Carolina’s background check come back clean?”

“Her State background check came back but not the Federal. She has a clean slate in Oregon, I’m sure the Federal check will come back clean as well.”

I am absolutely stunned; I know the implications. “So she could have committed a crime in another state – which would show up on the Federal database but not the State one – and you let her work here without first knowing if she was cleared?”

Jason had the audacity to shake his head and chuckle. “I assure you, in all my years working in the industry, there’s never been an employee who didn’t pass with flying colors. I’m not worried about Carolina.”

I stood up and addressed the Administrator. “I can’t believe I’ll never see my Kindle again. You can’t possibly think that’s fair, Jason.”

“My hands are tied, fair or not.”

All employees working with vulnerable adults are not permitted to work in a facility without a completed criminal background check.

42 CFR 483.13

(c) Staff treatment of residents.  The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property.

(1) The facility must

(i) Not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion;

(ii) Not  employ individuals who have been

(A) Found guilty of abusing, neglecting, or mistreating residents by a court of law; or

(B) Have had a finding entered into the State nurse aide registry concerning abuse, neglect, mistreatment of residents or misappropriation of their property; and

(iii) Report any knowledge it has of actions by a court of law against an employee which would indicate unfitness for service as a nurse aide of other facility staff to the State nurse aide registry or licensing authorities.

(2)  The facility must ensure that all alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source, and misappropriation of resident property are reported immediately to the administrator of the facility and to other officials in accordance with State law through established procedures.  See also Washington State law RCW  70.129.130

The admission process into a long-term care facility is stressful on residents and their family members.  What they fail to realize is that the resident agreement they sign, and all other sub-documents of that agreement, are legal documents: some of them binding, others not.  As such, it is a very good idea to read them ahead of time and even have them reviewed by an attorney or legal advocacy group.  Most states do not permit Waivers of Liability to be a part of the LTC admission process.  Administrators, however, oftentimes succeed in slipping that document into the ream of documents residents must sign.  The good news is that such waivers are not enforceable; the bad news is that residents assume that because they signed a Waiver of Liability, they have no recourse when their personal belongings are stolen by staff and/or other residents.

Washington State law RCW 70.129.105  Waiver of liability and resident rights limited.  No long-term care facility or nursing facility licensed under RCW 18.51 shall require or request residents to sign waivers of potential liability for losses of personal property or injury, or to sign waivers of residents’ rights set forth in this chapter or in the applicable licensing or certification laws.

Since the Waiver of Liability is not enforceable, the flip side of that is that the facility is liable and should either replace Mrs. Milliken’s Kindle Fire or provide the funds for her to purchase a new one.

If you or a loved one need assistance regarding LTC residents’ rights, contact your local LTC Ombudsman office which can be located at the National Long-Term Care Ombudsman Resource Center.

Part 3 of this series will deal with the discharge/eviction of a resident from a long-term care facility.  Part 3 will be posted on Friday morning, November 14.